Tribe received authority from the federal government to regulate water pollution beyond the reservation

The future of an iron ore mine in northern Wisconsin could be influenced by an American Indian tribe that opposes the project and recently received authority from the federal government to regulate water pollution on and off the reservation.

The U.S. Environmental Protection Agency approved a request by the Bad River Chippewa in 2011 to set water quality standards for the nearly 125,000-acre reservation on the shore of Lake Superior.

This new power also lets the tribe dictate pollution limits on others outside the reservation that could harm tribal rivers such as the Bad River, and streams and wetlands.

The Bad River Chippewa also are seeking authority to regulate air pollution that would allow it to impose standards on large emissions sources.

Gogebic Taconite - and its plans for a $1.5 billion open-pit mine about 5 miles from the tribe's nearest boundary - would have to abide by the Bad River's authority.

The pit, plunging to a depth of 1,000 feet, would produce enormous amounts of waste rock and, potentially, runoff pollution that would flow in the direction of tribal lands if not handled properly.

Gogebic also is planning a factory to process iron ore into taconite pellets. The plant would have to meet Bad River's pending air standards.

A legal expert says the tribe's new environmental authority and its long-standing treaty rights could pose trouble for Gogebic.

"I think they present a substantial obstacle for the mine," said Richard Monette of the University of Wisconsin Law School and a specialist on American Indian law.

But officials with the EPA and the Department of Natural Resources believe it's premature to say that Bad River pollution authority could determine the fate of the mine.

Indeed, much is unknown:

The Legislature is in the midst of writing a new mining bill. Gogebic hasn't formally proposed its plans. And a years-long review process by regulators has not yet started.

What is known is that the Bad River's water standards are stricter than Wisconsin's in some cases.

"Does the Bad River tribe have standards that are different, or more stringent than Wisconsin's? In some cases, yes, it does," said Tinka Hyde, the EPA's top water regulator in six states, including Wisconsin.

Top issue in Madison

Gogebic's project is at the heart of a debate over a mining bill that's emerged as the dominant issue before lawmakers this winter.

The bill would ease some environmental safeguards and speed up the DNR's review process, but supporters emphasize that it contains many protections.

A Republican mining bill has so far passed Assembly and Senate committees.

Backers are drawn to the economic potential of the mine, which is projected to employ 700 people and spur thousands of jobs in construction and spinoff employment.

Normally, states regulate water quality. But in 1987, Congress authorized the EPA to treat American Indian tribes the same as states. The federal agency retains enforcement authority in such cases.

The Bad River tribe is the third in Wisconsin to receive water pollution authority. The Lac du Flambeau Chippewa near Minocqua and Sakaogon (Mole Lake) Chippewa near Crandon also have such authority.

So far, no off-reservation project has been derailed by tribal standards in Wisconsin.

Nationally, Monette said that tribes are flexing their muscles.

The most notable case: In Albuquerque, N.M., the Isleta Pueblo forced the city to upgrade its sewage treatment system beyond federally required standards after the tribe's limits were backed by a favorable federal appeals court ruling in 1996. The tribe live 6 miles downstream from Albuquerque's wastewater outfall.

The Bad River Chippewa will vigorously exert its water pollution authority, according to chairman Mike Wiggins Jr.

"Anywhere there is access to the water near the mining operations, we are going to be testing all over the place," Wiggins said. "We'll be all over that."

Gogebic agrees the company must meet the band's requirements, even though records show the company told the EPA during the band's review process for water authority that the standards "appear to be impossible" to meet.

Gogebic President Bill Williams said on Feb. 6 the company is studying pollution abatement technologies to make sure any water leaving the mine site will meet tribal limits.

"We have got to meet them, and if you don't, there is no mine," Williams said after leaving a Senate committee.

Environmentalists and the Bad River Chippewa are especially concerned about sulfides in waste rock and their potential to interact with air and water to cause acid mine drainage that could harm the Bad River and its tributaries.

Williams has downplayed the potential of sulfide problems, based on the company's review of proprietary rock samples from past exploration work.

That's not sat well with some environmentalists.

Joseph Skulan, a geologist at UW-Madison, confronted Williams after a meeting at the Capitol this month.

"You know what's in the rock and you've not made that public," Skulan said.

Williams said rock samples will be made public during the permit process.

Bad River's reservation and the proposed mine site are located in an especially water-rich area of Wisconsin, where dozens of streams and rivers flow north into Lake Superior.

The wetlands of the Bad River comprise 40% of all coastal wetlands of Lake Superior, according to documents filed by the tribe in their application for water authority.

"Our ability to regulate water is paramount - it's unbelievably critical," Wiggins said. "It cuts directly to the trust responsibility of the United States government with our treaties and to our ancestral connections."

Jessica Owley of the State University of New York Buffalo Law School said the federal government has an "obligation to help the tribe protect its natural resources."

And if the tribe's standards are stricter than the EPA's or the state's, "it's not going to look at three different standards and pick the weakest one and champion it," she said.

The DNR says the differences between state and Bad River standards are small, but the tribe appear to have stricter numeric criteria in some categories - for ammonia, dissolved oxygen and turbidity. Turbidity is a measure of the cloudiness of water.

There are also narrative standards that come into play that describe unacceptable conditions in the water and leave more room for interpretation.

In the Bad River's highest-quality water bodies, the tribe specify "no new or increased discharges or alterations of the background conditions are allowed."

The language has raised concerns about the difficulty an upstream source would encounter in meeting such requirements.

"The narrative standards are kind of tricky," Owley said. "In some ways it can be quite challenging, because it leaves a little more to interpretation by a court.

"But they have also proven to be protective of water quality, and they've been able to get to things that we have trouble doing with numbers."

About Lee Bergquist

Lee Bergquist covers environmental issues and is author of "Second Wind: The Rise of the Ageless Athlete."